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HIggins v. Saul

United States District Court, District of Columbia

September 16, 2019

ANDREW SAUL, in his official capacity as Commissioner of the Social Security Administration, [1]Defendant.



         The plaintiff, Edith Ann Higgins, brings this civil action against the defendant, Andrew Saul, in his official capacity as Commissioner of the Social Security Administration (“SSA”) (the “Commissioner”), challenging the Commissioner's decision denying her claim for disability insurance benefits pursuant to 42 U.S.C. § 405(g) (2018). See generally Complaint (“Compl.”). On January 20, 2016, this Court “referred [the case] to a Magistrate Judge for full case management up to, but excluding, trial[, ] . . . includ[ing], with respect to any dispositive motions, preparation of a report and recommendation.” Order at 1 (Jan. 20, 2016), ECF No. 3. Thereafter, the plaintiff filed a Motion for Judgment of Reversal (“Pl.'s Mot.”), and the Commissioner filed the Defendant's Motion for Judgment of Affirmance and in Opposition to Plaintiff's Motion for Judgment of Reversal (“Def.'s Mot.”). On March 3, 2017, the Magistrate Judge issued a Report and Recommendation recommending that the Court deny the plaintiff's motion and grant the defendant's motion. See Report and Recommendation (the “Report” or “R & R”) at 1. Currently before the Court are the Plaintiff's Objections to the Report and Recommendation of the Magistrate Judge (“Pl.'s Objs.”). Upon careful consideration of the parties' submissions, [2] the Court concludes that it must grant in part and deny in part the plaintiff's motion for a judgment of reversal and deny the defendant's motion for a judgment of affirmance.

         I. BACKGROUND

         A. Statutory and Regulatory Background

         The Social Security Act provides disability insurance benefits and supplemental security income to qualifying individuals with a disability. See 42 U.S.C. §§ 423(a)(1), 1381, 1381a. The Act defines “disability” as an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than [twelve] months.” Id. § 423(d)(1)(A). “With certain exceptions not relevant here, an individual is disabled ‘only if [her] physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.'” Butler v. Barnhart, 353 F.3d 992, 997 (D.C. Cir. 2004) (alterations in original) (quoting 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(B)).

         The Commissioner uses a five-step process to determine whether a claimant is disabled, see 20 C.F.R. § 416.920, with “[t]he claimant carr[ying] the burden of proof on the first four steps, ” Butler, 353 F.3d at 997. At the first step, the claimant must demonstrate that she is not engaged in “substantial gainful activity, ” 20 C.F.R. § 416.920(a)(4)(i), which is defined as work that “[i]nvolves doing significant and productive physical or mental duties; and [ ] i[s] done (or intended) for pay or profit, ” id. § 404.1510. At the second step, the claimant must establish that she has a “severe medically determinable physical or mental impairment that meets the [twelvemonth] duration requirement.” Id. § 416.920(a)(4)(ii). An impairment is “severe” if it “significantly limits her physical or mental ability to do basic work activities.” Id. § 416.920(c). At the third step, if the claimant can establish that her “impairment(s) [ ] meets the duration requirement” and “meets or equals one of [the] list[ed] [impairments] in appendix 1” of the SSA's regulations, the Commissioner “will find that [she] [is] disabled.” Id. § 416.920(a)(4)(iii), (d). If the claimant does not make this showing, the Commissioner's inquiry moves on to the fourth step, which requires the claimant to demonstrate that her impairment prevents her from performing her “past relevant work, ” id. § 416.920(a)(4)(iv), (e), which is defined as “work that [a claimant] ha[s] done within the past [fifteen] years, that was substantial gainful activity, and that lasted long enough for [the claimant] to learn to do it, ” id. § 404.1560(b)(1). “Once a claimant has carried the burden on the [ ] four[th] step[], the burden shifts to the Commissioner on step five to demonstrate that the claimant is able to perform ‘other work.'” Butler, 353 F.3d at 997 (quoting 20 C.F.R. §§ 404.1520(f), 416.920(f)).

         To evaluate a claim at steps four and five, the Commissioner must “assess and make a finding about [the claimant's] residual functional capacity based on all the relevant medical and other evidence in [the claimant's] case record.” 20 C.F.R. § 416.920(e). A claimant's residual functional capacity “is the most [the claimant] can do despite [physical and mental] limitations” resulting from her “impairment(s)[] and any related symptoms.” Id. § 416.945(a)(1). The “[residual functional capacity] assessment must [ ] identify the [claimant]'s functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis.” SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996). Specifically, the residual functional capacity assessment “must address both the remaining exertional and nonexertional capacities of the individual.” Id. at *5. “Exertional capacity addresses an individual's limitations and restrictions of physical strength and defines the individual's remaining abilities to perform each of seven strength demands: [s]itting, standing, walking, lifting carrying, pushing, and pulling.” Id. “Nonexertional capacity considers an individual's ability to perform the following work-related functions: postural activities like stooping and climbing; manipulative activities like reaching and handling; visual activities; communicative activities; and mental activities.” Davis v. Berryhill, 272 F.Supp.3d 154, 171 (D.D.C. 2017) (citing SSR 96-8p, 1996 WL 374184, at *6).

         “The [SSA] regulations describe a two-step process for evaluating symptoms[.]” SSR 96-7p, 1996 WL 374186, at *2. “First, the adjudicator must consider whether there is an underlying medically determinable physical or mental impairment(s)[] . . . that could reasonably be expected to produce the individual's pain or other symptoms.” Id. “Second, . . . the adjudicator must evaluate the intensity, persistence, and limiting effects of the individual's symptoms to determine the extent to which the symptoms limit the individual's ability to do basic work activities.” Id. “In evaluating the intensity and persistence of [a claimant's] symptoms, . . . [the Commissioner] consider[s] all of the available evidence, including [the claimant's] medical history, the medical signs and laboratory findings, and statements about how [the] symptoms affect [the claimant], ” and “determine[s] the extent to which [the] alleged functional limitations and restrictions due to pain or other symptoms can reasonably be accepted as consistent with the medical signs and laboratory findings and other evidence.” 20 C.F.R. § 404.1529(a). Statements about how the symptoms affect the claimant may include opinions “from acceptable medical sources, ” id. § 404.1527(a)(1); “[o]pinions from medical sources who are not acceptable medical sources and from nonmedical sources, ” id. § 404.1527(f)(1); and statements from the claimant herself or other individuals, see id. § 404.1529(c)(4). Acceptable medical sources include “treating sources, ” such as the claimant's own physician who has “provided [the claimant] with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with [the claimant], ” id. § 404.1527(a)(2); nontreating sources, such as a physician who has examined the claimant “but does not have . . . an ongoing treatment relationship with [the claimant], ” id. § 404.1527(a)(2); or “nonexamining source[s], ” id. § 404.1527(c)(3), meaning physicians “who ha[ve] not examined [the claimant] but provide[] a medical or other opinion, ” 20 C.F.R. § 404.1502 (2012). At the time the plaintiff in this case applied for benefits, nonacceptable medical sources included “nurse practitioners, physicians' assistants, naturopaths, chiropractors, audiologists, and therapists.” 20 C.F.R. § 404.1513(d)(1) (2012).[3] If the claimant requests a hearing, the Commissioner may also consider assessments regarding the claimant's residual functional capacity “made by . . . State agency medical . . . consultants . . . based on their review of the evidence in the case record.” Id. § 404.1513(a)(5).

         “[W]henever [an] individual's statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the [Commissioner] must make a finding on the credibility of the individual's statements based on consideration of the entire case record.” SSR 96-7p, 1996 WL 374186, at *2. “The reasons for the credibility finding must be grounded in evidence and articulated in the determination or decision.” Id. For example,

[i]t is not sufficient to make a conclusory statement that ‘the individual's allegations have been considered' or that ‘the allegations are (or are not) credible[.]' . . . The determination or decision must contain specific reasons for the finding on credibility, supported by evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the [Commissioner] gave to the [ ] statements and the reasons for that weight.”


         “The administrative review process consists of several steps.” 20 C.F.R. § 404.900(a). First, the Commissioner makes an “[i]nitial determination” on a claimant's application. Id. § 404.900(a)(1). Second, “[i]f [a claimant] [is] dissatisfied with an initial determination, [she] may ask [the Commissioner] to reconsider it, ” id. § 404.900(a)(2), and third, “[i]f [a claimant] [is] dissatisfied with the reconsideration determination, [she] may request a hearing before an administrative law judge” (“ALJ”), id. § 404.900(a)(3). Finally, “[i]f [a claimant] [is] dissatisfied with the decision of the [ALJ], [she] may request that the Appeals Council review the decision.” Id. § 404.900(a)(4). Once these four steps are completed, the Commissioner “ha[s] made [his] final decision.” Id. § 404.900(a)(5). “Any individual, after [a] final decision [by] the Commissioner[, ] . . . may obtain review of such decision by a civil action commenced within sixty days after the mailing . . . of notice of such decision[, ] . . . [and] [s]uch action may be brought in the district court of the United States for the judicial district in which the plaintiff resides.” 42 U.S.C. § 405(g). The district court may affirm, modify, or reverse the decision of the Commissioner with or without remanding it for a rehearing. See id.

         B. Factual Background and Procedural History

         The plaintiff filed her application for disability benefits on June 28, 2012. See Administrative Record (“AR”) 18. In her application, she “alleg[ed] disability beginning April 30, 2012, ” AR 18, based on “chronic pulmonary restrictive disease, sleep apnea, and diabetes, ” see AR 61.

         In support of her application, the plaintiff completed and submitted a “Function Report” and a “Work History Report.” See AR 184-205. In the Work History Report, the plaintiff reported that, in the past fifteen years, she had held positions as a pharmacy technician at a clinic and a retail business, a customer service representative at a call center and a utility business, and a quality assurance agent at a call center. See AR 187. In the plaintiff's Function Report, which is a questionnaire regarding “[h]ow [her] . . . conditions limit[ed] [her] activities, ” the plaintiff reported that she “ha[d] periods when [she] c[ould not] concentrate, ” “g[ot] out of breath quickly, ” “sometimes ha[d] a hard time breathing, ” AR 198, and was “unable to stay awake for long periods of time, ” AR 199. She also reported that she “often t[ook] longer to complete tasks because [she was] tired [and] sleepy” and could pay attention only for “about [thirty] minutes.” AR 203. As to her daily activities, the plaintiff reported that she “[d]ress[ed] [her] minor child, d[id] household chores, [and] cook[ed][, ] taking frequent breaks between every task.” AR 199. Additionally, she reported that she prepared “[c]omplete meals” three to four times per week, AR 200, went outside two to three times per week, see AR 201, “read[], watch[ed] [television, and used the] computer” daily, “[s]p[oke] with people on the phone and computer” four to five times per week, and went to church weekly, AR 202. She also indicated that she was able to pay bills, count change, handle a savings account, and use a checkbook and money orders. See AR 201.

         The plaintiff's adult daughter, Lula Barnes, also completed a Function Report regarding the plaintiff's limitations. See AR 209-16. Barnes reported that the plaintiff “[wa]s unable to concentrate for long periods of time, [ ] los[t] her train of thought often, ” AR 209, and “ha[d] trouble completing task[s] because she falls asleep, ” AR 214. Barnes also reported that the plaintiff did “everything necessary” for her minor child, who at the time was almost two years old, AR 210, prepared “[c]omplete meals” weekly, AR 211, did “[c]leaning and laundry” daily “with frequent breaks, ” AR 211, and “read[], wr[ote], play[ed] cards, play[ed] computer games, [and] watch[ed] [television]” daily but was “prone to failing asleep while doing” those activities, AR 213.

         To evaluate the plaintiff's claim, the SSA obtained various medical records documenting the plaintiff's medical history. Specifically, it obtained progress notes from Laura Worby, a certified nurse practitioner (“Nurse Worby”), recording Nurse Worby's treatment of the plaintiff from January 2011 to June 2012. See AR 365-461. The records reflect Nurse Worby's findings that the plaintiff had the following conditions: type II diabetes, hypertension, morbid obesity, emphysema, a personal history of tobacco use, and postablative hypothyroidism. See AR 366. Nurse Worby's records also reflect that she treated these conditions by, inter alia, prescribing various medications, see, e.g., AR 366-67, advising the plaintiff on her diet, see, e.g., AR 373 (reporting that she “encouraged [the plaintiff] to . . . monitor diet[] [and] to limit soda intake”), and “counsel[ing] [the plaintiff] on the dangers of tobacco use and urg[ing] [her] to quit” smoking cigarettes, AR 367. Additionally, Nurse Worby's records reflect that the plaintiff was hospitalized at the Washington Hospital Center from January 30 to February 2, 2012, due to “emph[y]s[e]ma exacerbation, pneumonia, [and] heart failure” and was “discharged on [two] liters of continuous [oxygen].” AR 378.

         On August 17, 2012, the SSA obtained a medical opinion from Dr. Earl Nicholas, a state agency consultant. See AR 77. Dr. Nicholas's report acknowledges receipt of the plaintiff's and Barnes's Function Reports, the plaintiff's Work History Report, and the pre-June 2012 medical records. See AR 71-72. Dr. Nicholas's report makes various factual findings regarding the plaintiff's medical history and concluded that the plaintiff has exertional, postural, and environmental limitations. See AR 74-75. As to the plaintiff's exertional abilities, Dr. Nicholas found that the plaintiff could frequently lift or carry less than ten pounds, stand or walk with normal breaks for a total of two hours in an eight-hour workday, sit with normal breaks for a total of six hours in an eight-hour workday, and push or pull with no limits. See AR 74. As to the plaintiff's postural abilities, he concluded that the plaintiff could frequently balance and stoop and occasionally climb ramps or stairs, kneel, crouch, and crawl, but could never climb ladders, ropes, or scaffolds. See AR 74. Finally, as to the plaintiff's environmental abilities, Dr. Nicholas concluded that the plaintiff could be exposed to extreme cold, wetness, and noise on an unlimited basis, but must “[a]void even moderate exposure” to extreme heat, humidity, vibration, fumes, odors, dusts, gases, poor ventilation, and hazards. AR 75. Ultimately, however, Dr. Nicholas concluded that the plaintiff's “limitations d[id] not prevent [her] from performing work [she] ha[d] done in the past as a customer service representative.” AR 77. Accordingly, he concluded that the plaintiff was not disabled. See AR 77.[4]

         The Commissioner rendered an initial decision denying the plaintiff's claim on August 20, 2012. See AR 18. Thereafter, the plaintiff sought reconsideration of the Commissioner's decision. See AR 92. In response, the SSA obtained a second medical opinion from Dr. Jacqueline McMorris, another state agency consultant. See AR 78-86. In addition to the materials received by Dr. Nicholas, Dr. McMorris received various medical records that the SSA obtained from the Washington Hospital Center in August and December 2012. See AR 79. Dr. McMorris affirmed Dr. Nicholas's findings as to the plaintiff's abilities, see AR 82-83, as well as his conclusion that the plaintiff's limitations did not prevent her from performing her past work as a customer service representative, see AR 85. Accordingly, Dr. McMorris also concluded that the plaintiff was not disabled. See AR 85. Upon reconsideration of his initial decision denying the plaintiff's claim, taking into account the second opinion from Dr. McMorris, the Commissioner again denied the plaintiff's claim on January 11, 2013. See AR 18. Then, on February 13, 2013, the plaintiff filed a written request for a hearing, which the Commissioner granted. See AR 18.

         Prior to her administrative hearing, the plaintiff submitted additional evidence, including a “Sleep Disorders Residual Functional Capacity Questionnaire” completed by Nurse Worby on March 7, 2014. AR 539, 542. Nurse Worby reported on the questionnaire that the plaintiff experienced “daytime sleep attacks” that typically occurred four to five times per day and lasted forty-five minutes each time, AR 539, as well as “side effects of medications” in the form of “[d]rowsiness/sedation, ” AR 540. Nurse Worby also found that the plaintiff's “[d]iabetic neuropathy interfere[d] with standing.” AR 542. Due to these issues, Nurse Worby concluded that the plaintiff would likely need to take four unscheduled breaks to rest during an average workday, with each break lasting an average of forty-five minutes. See AR 541. Nurse Worby also concluded that the plaintiff could sit continuously for only thirty minutes at a time and for less than a total of two hours in an eight-hour workday with normal breaks, and stand continuously for only twenty minutes at a time and for less than two hours in an eight-hour work day with normal breaks. See AR 540.

         On April 23, 2014, an ALJ conducted a hearing on the plaintiff's claim, which included testimony from the plaintiff and an impartial vocational expert. See AR 18. As to her symptoms, the plaintiff testified, inter alia, that she “was falling asleep . . . more often, even though [she was] using [her] [continuous positive airway pressure (‘CPAP')] machine at night, ” and that, in January 2013, she “fell asleep in the middle of [ ] writing [a grocery] list.” AR 53. She further testified that “the only reason . . . [Barnes was] still living at home [with her] [wa]s because . . . [she] f[e]ll asleep so eas[il]y [and she] d[id not] want anything to happen to her” then-three-year-old daughter. AR 43-44. She also testified that she used oxygen “all day every day, ” AR 38, “[b]ecause if [she] want[ed] to do anything at all [she] ha[d] to have the oxygen on, ” AR 52. She further testified that she used a travel oxygen tank that weighed “maybe seven pounds, ” as well as a “stationary” tank that she used at home. AR 52. The plaintiff also testified that she “originally applied [for disability benefits] when [her medical providers] first told [her] that [she] was going to be on [ ] oxygen[, ] . . . because that's what everybody said [she] was supposed to do since [she] was [ ] on [ ] oxygen.” AR 56.

         As to her daily activities, the plaintiff testified that she “g[o]t [her] three-year-old [daughter] ready for school, ” AR 46, and walked her daughter four blocks to school, see AR 47, “normally . . . stop[ping] a couple of times going up [a] hill, ” AR 50. She also testified that she was “able to . . . bath[e] [her]self and dress [her]self” but that it was “a slow process, ” and that she was also able to “wash dishes, . . . wipe off [ ] the furniture[, ] and [ ] [i]f [she] t[ook] [her] time[, ] . . . sweep the floors, ” AR 49, and do laundry, so long as there were no detergents or products present that “irritate[d] [her] lungs and [ ] breathing, ” AR 48. The plaintiff further testified that she would “try to prepare dinner” and “get it started, [but] normally somebody else ha[d] to finish it.” AR 47. She additionally testified that she watched television for about two or three hours a day, see AR 54, and played memory games on the computer for “[m]aybe an hour” each day, AR 54, but that she did not read, talk to friends on the telephone, or spend time going out with friends, see AR 55. She also testified that she could lift and carry about fifteen pounds, see AR 48, and sit down comfortably for “[a]bout [ ] half an hour, ” AR 50.

         The vocational expert testified that the plaintiff's past work as a pharmacy technician was “light” and her past work as a customer service representative and quality assurance agent was “sedentary.” AR 57. In response to hypothetical questions from the ALJ, the vocational expert opined that if the plaintiff were limited to standing or walking approximately two hours and sitting approximately six hours in an eight-hour workday, she could perform her past sedentary positions, but if she were limited to sitting for two hours in an eight-hour workday, she could not perform any of her past relevant work or any other work. See AR 58-59. In response to questioning from the plaintiff's representative, the vocational expert also testified that, “[i]f [a]n individual is off task for [fifteen] to [eighteen] percent of the workday, ” the individual could not maintain any work in the national economy. AR 59.

         On August 21, 2014, the ALJ issued a decision determining that the plaintiff is not disabled and denied the plaintiff's claim. See AR 25. Following the five-step analysis outlined above, the ALJ concluded at step one that the plaintiff “ha[d] not engaged in substantial gainful activity since April 30, 2012, the alleged onset date” of her disability. AR 20. The ALJ then concluded at step two that the plaintiff “ha[d] the following severe impairments: hypertension, diabetes, COPD, sleep apnea, and obesity, ” but concluded at step three that none of those impairments, alone or in combination, “me[t] or medially equal[ed] the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” AR 20. The ALJ then assessed the plaintiff's residual functional capacity and concluded that she

ha[d] the residual functional capacity to perform sedentary work as defined in 20 C[.]F[.]R[.] [ยง] 404.1567(a) except lifting up to [ten] pounds occasionally, standing or walking approximately two hours, sitting approximately six hours in an eight[-] hour workday; pushing and pulling are unlimited except as shown for lifting and carrying; never crawling or climbing ladders, ropes, or scaffolds; frequently balancing, occasionally climbing ramps and stairs, stooping, crouching, and kneeling; and . . . avoid[ing] even moderate ...

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